When a defendant is accused of a sexual offence in a criminal action in which he is also accused of another sexual offence, is evidence of his disposition to commit such crimes considered to be inadmissible under California Evidence Code section 1108?

Evidence Code section 1108 provides "a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 1108 permits " ' "consideration of . . . other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." ' [Citation.]" (People v. Soto (1998) 64 Cal.App.4th 966, 984.)

The prosecution requested that the court instruct the jury with a modified version of CALCRIM No. 1191the pattern jury instruction on how to consider propensity evidencepursuant to this court's opinion in People v. Wilson (2008) 166 Cal.App.4th 1034. Defense counsel objected on the ground that "there can be a confusion with the jury . . . about the level of proof necessary in regards to using that propensity instruction." Defense counsel asserted "It doesn't tell [the jurors] as to what standard they must conclude." The court overruled the objection.

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